PEOPLE v. JACKSON

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Jermaine JACKSON, appellant.

Decided: January 31, 2006

ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, ROBERT A. LIFSON, and ROBERT J. LUNN, JJ. Lynn W.L. Fahey, New York, N.Y. (Winston McIntosh of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel;  Jackie Halpern on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.), rendered July 2, 2003, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to preserve for appellate review his contention that the arresting detective's bolstering testimony about the complainant's identification of the defendant from a lineup was improper (see CPL 470.05;  People v. West, 56 N.Y.2d 662, 451 N.Y.S.2d 711, 436 N.E.2d 1313;  People v. Martinez, 1 A.D.3d 611, 767 N.Y.S.2d 465).

 The defendant correctly observes that the redirect questioning about the prior identification of the defendant from a photo array went beyond what was necessary to correct any misapprehension which may have been caused by the defense counsel's cross-examination (see People v. Melendez, 55 N.Y.2d 445, 452, 449 N.Y.S.2d 946, 434 N.E.2d 1324;  People v. Johnson, 296 A.D.2d 422, 745 N.Y.S.2d 51).   Furthermore, the photo array should not have been admitted into evidence (see People v. Wilson, 195 A.D.2d 493, 494, 600 N.Y.S.2d 113).   This claim, contrary to the People's contention, was preserved for appellate review, because the defense counsel strenuously objected to the proposed questioning during the colloquy prior to redirect, and the court expressly denied the objection (see CPL 470.05[2] ).

 Nevertheless, this error in allowing testimony about the photo array on redirect and admitting the photo array into evidence at trial was harmless in light of the overwhelming evidence of the defendant's guilt, which precluded any significant probability that the jury would have acquitted the defendant in the absence of the error (see People v. Johnson, 57 N.Y.2d 969, 970, 457 N.Y.S.2d 230, 443 N.E.2d 478;  People v. White, 210 A.D.2d 271, 619 N.Y.S.2d 969).

The defendant was not deprived of the effective assistance of counsel (see People v. Rivera, 71 N.Y.2d 705, 708, 530 N.Y.S.2d 52, 525 N.E.2d 698;  People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Thomas, 276 A.D.2d 570, 714 N.Y.S.2d 449;  People v. Maupin, 268 A.D.2d 488, 489, 703 N.Y.S.2d 489;  People v. Mitchell, 208 A.D.2d 959, 618 N.Y.S.2d 727;  People v. Ruscitti, 163 A.D.2d 431, 432, 559 N.Y.S.2d 19).

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